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Nelson, who has trained newsrooms on their legal rights while covering immigration, stressed that journalists have the right to cover immigration enforcement operations in public, but should strike a balance between exercising their rights and protecting themselves.
This interview has been edited for length and clarity.
What rights do journalists have when it comes to recording, filming, or talking to ICE or CBP agents during an immigration enforcement action?
Nelson: If a journalist is witnessing an immigration enforcement action, their rights to be present, to observe, and to record are well established, particularly if they are in a public location. Think about a public park or public sidewalk or someone’s car that has been pulled over on a public street.
However, journalists should avoid putting themselves in a position where they could be accused of obstructing or interfering with officers or the target of their enforcement. Having good situational awareness is important. Try to keep a safe distance. Make sure that you are not blocking traffic or any of the enforcement actions.
If the enforcement action is taking place in a public business, such as a restaurant, you should have the same rights as any member of the public to be in the public-facing areas of that business, like the dining room or host stand.
There are some circumstances where law enforcement can establish a security perimeter or ask people to take a few steps back so that they can do their work. Things like that are generally permissible.
But if law enforcement officers are targeting journalists, saying something like, ‘you with the camera, you with the notepad, get out of here,’ that should not be allowed. Restrictions or security perimeters should be applicable to everyone. That’s in the First Amendment law.
How can journalists respond to law enforcement attempts to restrict their reporting?
Nelson: The reality of the situation is a power imbalance that favors law enforcement, so if a law enforcement officer is repeatedly getting in your face, demanding that you leave, that you stop recording, it can be very challenging to push back. Every journalist ends up needing to decide for themselves how much they want to advocate for themselves.
I think it is perfectly fair to be respectful and to say: ‘I’m a journalist, I have a right to be here, I have a right to report. I’m not going to get in the way of anything you’re doing.’ But if the officer continues to persist, you could be subject to arrest for failing to comply with their orders.
If you’re arrested, you’re done with your work for the day, so every journalist has to decide for themselves how much they want to push back. Maybe [after they leave the area] they’re not in an ideal location to record what they want to record, but they’re still in the field and they’re still doing the work.
There are still options after the fact to be able to submit a complaint, get an organization like the Reporters Committee to write a letter to say what the officers did was wrong and that they were obstructing the news gathering rights of these journalists.
Do journalists have the right to visit detention facilities or gain access to immigration court proceedings?
Nelson: Detention facilities are similar to prisons. It is difficult to gain access to those facilities for journalistic purposes. They are not open to the public. Journalists often will have to make formal requests in order to visit those facilities.
Immigration courts are handled under the executive branch. They are not like other courts. They are by statute supposed to be open to the public, but there are a number of grounds on which an immigration judge could choose to either limit access to a proceeding or close a proceeding entirely. For example, if the individual will be testifying about serious harm that was done to them or if a child is testifying.
These courtrooms are in all sorts of different facilities. Sometimes they are in detention centers or sometimes in federal buildings. They’re not typical courthouses that we think of, so there are different security standards. In theory, journalists should be able to cover these proceedings under most circumstances.
If they’re having trouble with that kind of access, we [RCFP] would be really happy to hear from them. We operate a legal hotline and we have responded to journalists who are having trouble accessing immigration proceedings.
What are the risks journalists should be aware of when covering enforcement operations where tensions are escalating?
Nelson: I know some instances where journalists are polite, introduce themselves as a journalist, and stay to the side, but in very high-stress environments, it’s just not going to work well.
Law enforcement officers could be acting aggressively in times of significant stress. In many cases, these individuals wear masks, and they take issue with being recorded at all.
When journalists are covering a protest or social unrest, they should carry press credentials or some evidence that indicates that they are a journalist. They should write contact numbers on their arm as opposed to just saving them in their cell phones in case they are arrested.
Journalists should also try to utilize the buddy system whenever possible. Report in pairs. That is helpful because you can check in on each other. At the very least, if someone is out there on their own, an editor or another trusted individual should know where that person is.
Having a clear understanding of their surroundings and what their exit opportunities are is very important. Just in case things start to get chaotic, then they have a way to remove themselves from the situation.
If journalists are detained or have their equipment seized while they’re covering immigration enforcement operations, what legal protections do they have?
Nelson: If they’re detained or their materials are taken, they should notify the arresting officer that they are a journalist. They should also contact legal counsel as quickly as they can.
They have a right to remain silent until they have access to legal counsel, and they should invoke that right to remain silent. No journalist should be questioned by law enforcement without the presence of an attorney.
Journalists should also tell the arresting officer that they are carrying work product materials — such as a notebook, camera, etc. — and that they do not consent to a search of their belongings, and do not consent to a search of their devices. There is a federal law called the Privacy Protection Act that is designed to offer protection from the seizure and search of journalistic work products, including photographs, notes, etc.
If they are having a hard time getting their materials back from law enforcement after release, they should contact legal counsel who can advocate on their behalf, and the Reporters Committee is an organization that can help with that.
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